HONG KONG’S NATIONAL SECURITY LAW AND THE RIGHT TO A FAIR TRIAL Cover photo caption: A protester tries to peacefully stop a police vehicle heading to the Legislative Council complex on June 12, 2019. Clashes between police and protesters on that day were a key turning point in the historic anti-extradition bill protests, which later led to Beijing’s decision to pass the National Security Law. Simply put, the right to a fair trial in NSL cases is under threat. The government’s aggressive approach to NSL cases documented in this report constitutes a direct assault on the rule of law in Hong Kong. This report was researched and written by Lydia Wong (alias, [email protected]), research fellow, Georgetown Center for Asian Law (GCAL); Thomas E. Kellogg ([email protected]), executive director, GCAL, and adjunct professor of law, Georgetown University Law Center; and Eric Yan-ho Lai ([email protected]), research fellow, GCAL. (Ms. Wong, a scholar from the PRC, decided to use an alias due to political security concerns). The authors would like to thank Prof. James V. Feinerman for both his substantive inputs on the report, and for his longstanding leadership and guidance of the Center for Asian Law. We also thank Kelsey Harrison for administrative and publishing support, and Ines Hilde for the cover design. Cover photo by CLOUD, a Hong Kong-based photographer. Last but not least, we would like to thank the Hong Kongers we interviewed for this report, for sharing their insights on the situation in Hong Kong. HONG KONG’S NATIONAL SECURITY LAW AND THE RIGHT TO A FAIR TRIAL Contents I. INTRODUCTION 1 II. POLICE INVESTIGATORY POWERS: NSL ARTICLE 43 4 Search 6 Surveillance 7 Foreign “Political Organizations or Agents” 8 III. DUE PROCESS RIGHTS AND INSTITUTIONAL CONCERNS 10 Designated Judges and Judicial Independence 10 Access to Counsel 12 Pre-Trial Release 15 Jury Trial 19 IV. CONCLUSION 22 HONG KONG’S NATIONAL SECURITY LAW AND THE RIGHT TO A FAIR TRIAL I. INTRODUCTION June 23, 2021 may eventually be seen as a turning point in Hong Kong’s legal and political history: that day marked the opening of the first trial under Hong Kong’s new National Security Law (NSL). The defendant in the case, Tong Ying-kit, 24, had been charged with terrorism and inciting secession, and also with dangerous driving under the local Road Traffic Ordinance. Would Tong be able to receive a fair trial on the serious NSL charges against him? Or would the government’s wide-ranging legal powers under the NSL make it impossible for Tong to defend himself, or for the courts to apply constitutional human rights protections to the case? As his trial began, Tong had reason to wonder whether his right to a fair trial might be in jeopardy. Just the day before, a High Court appeals judge denied his application for a jury trial, holding that Hong Kong’s Secretary for Security had the unilateral authority to transfer his case to a three-judge panel.1 The ruling marked a small but significant step backward for the rule of law in Hong Kong, and a departure from Hong Kong’s rich common law tradition of relying on jury trials as a tool to preserve judicial independence and public trust in the courts. Some observers worried that the jury decision would set the tone both for Tong’s own criminal trial, and for other pending NSL trials: judges might pay lip service to Basic Law human rights protections in their verdicts, but in the end, many feared, they would side with the government on all consequential matters. As Tong’s trial began, the government had to be satisfied with its in-court performance thus far: since the NSL went into effect on July 1, 2020, the government had brought charges against more than 50 individuals for alleged violations of the NSL, and had yet to have a significant judicial decision leveled against it. On matters ranging from trial by jury to bail to the judiciary’s constitutional jurisdiction over the NSL itself, the government could boast a virtually unblemished won-loss record, one that it hoped to extend into criminal trials themselves. As the first NSL trials begin, this briefing paper attempts to lay out core concerns on due process rights of individuals accused of NSL crimes. We document the curtailment of due process rights in three key areas: the right to an attorney of one’s own choosing; the right to pre-trial release (or bail as it is more commonly known); and the right to a trial by jury. We also document concerns over judicial independence in NSL cases, and describe the ways in which the NSD’s expanded investigatory powers can violate basic human rights. Taken together, the moves by the government to limit due process rights while expanding its own investigatory powers put the fundamental right to a fair trial at risk. It is too early to say whether NSL defendants will in fact receive a fair trial, and this briefing paper offers no final conclusions on this front. Only after the trial process has fully played out, and the first few verdicts have been issued, can any full assessment of the right to a fair trial for NSL defendants be made. 1 [2021] HKCA 912. 1 HONG KONG’S NATIONAL SECURITY LAW AND THE RIGHT TO A FAIR TRIAL Still, the limits on due process rights documented by this briefing paper are deeply troubling, not least because they cast doubt on the government’s own commitment to human rights and the rule of law. Simply put, the right to a fair trial in NSL cases is under threat. The government’s aggressive approach to NSL cases documented in this report constitutes a direct assault on the rule of law in Hong Kong, and may ensure that the Hong Kong government and Beijing are able to achieve a number of criminal convictions in pending NSL cases that otherwise might prove elusive. As GCAL documented in a prior report, the NSL gives Beijing a number of new tools to crack down on its perceived political enemies in Hong Kong.2 The law’s vague and overbroad criminal provisions have been used to target peaceful protesters and Hong Kong’s political opposition, while other provisions have been used to tighten Beijing’s control over Hong Kong’s government bureaucracy and its education system. But the law also creates a new dilemma: how to ensure that Hong Kong’s world-class judiciary, justly famous for its commitment to the rule of law, will deliver guilty verdicts under the NSL, even when doing so would – arguably, at least in some cases – go against the human rights protections found in the Basic Law? If the government can’t deliver guilty verdicts for most or all of those charged under the NSL, then the law’s overall impact will be dramatically reduced. It’s also possible that the government could view not guilty verdicts as a political embarrassment, either in the eyes of the Hong Kong public, or – more importantly these days – in the eyes of Beijing. The charge of inciting secession against Tong illustrates the government’s dilemma: How can the charge, which seeks to criminally punish Tong merely for carrying an allegedly pro- independence banner, be reconciled with the Basic Law’s guarantee of the right to free speech? If Tong is found not guilty of the NSL secession charge, the government may well worry that its chances for success in other NSL speech cases – which constitute roughly 25% of all NSL arrests thus far, according to our analysis – are low.3 It seems clear that Beijing has anticipated this potential hurdle. Over the past few months, a new prong of Beijing’s strategy has emerged: chipping away at core due process protections, which in turn will make it easier to press judges to deliver guilty verdicts. Over the past year, the Hong Kong government, almost certainly acting in close coordination with the mainland Office for Safeguarding National Security, has taken steps to limit several key procedural protections in NSL cases. While such moves by no means guarantee a guilty verdict, nonetheless they make convictions that much easier to obtain. 2 Lydia Wong and Thomas E. Kellogg, Hong Kong’s National Security Law: A Human Rights and Rule of Law Analysis, Georgetown Center for Asian Law report, February 2021. 3 For an in-depth data analysis of the NSL arrests thus far, see Lydia Wong and Thomas Kellogg, “New Data Show Hong Kong’s National Security Arrests Follow a Pattern,” ChinaFile, May 3, 2021. 2 HONG KONG’S NATIONAL SECURITY LAW AND THE RIGHT TO A FAIR TRIAL The government has also moved to expand investigatory powers of the National Security Department (NSD) of the Hong Kong Police. On July 6, 2020, the Committee for Safeguarding National Security (CSNS) issued highly detailed Implementation Rules (IRs) for the NSD. In general, the IRs remove procedural safeguards and limit judicial oversight, allowing the police to act unilaterally to search the homes of NSL suspects, to tap their phones, freeze their assets, and to censor online speech related to NSL crimes. Given that the NSL itself has regularly been used to target opposition politicians and grassroots activists, the Hong Kong government now has broad legal authority to keep close tabs on its critics, and to freeze their assets or censor their online speech. As this briefing paper documents, the moves to limit due process rights and expand police investigatory powers are casting a long shadow over Hong Kong’s vaunted legal system.